EU Could Shape its Independent and Constructive Role and Preserve its Political and Economic Sovereignty
After Trump Administration decided to withdraw from the Joint Comprehensive Plan of Action (JCPOA)[1], European Union tried to take appropriate steps to preserve the trade, political, and security interests of EU and Iran by sticking to the JCPOA[2]. EU has updated some legislations to counter unilateral sanctions imposed by the United States on businesses operating in Iran. The European Parliament and the Council are focused to object to US secondary sanctions and protect European companies doing business with Iran[3].
Germany, France and the United Kingdom officials, in a letter sent to US Secretary of State and Treasury Secretary on June 4, 2018, asked US to exclude European companies doing business in Iran from its secondary sanctions and also appealed issuance of waiver for European companies operating in some sectors of Iranian market, such as: infrastructure, civil aviation, and energy[4].
In addition to sustaining economic ties with Iran, the EU’s approach to preserving the JCPOA has another dimension, which relates to political and economic sovereignty. EU tries to prove the fact that it can have its own bilateral trade and investment irrespective of US unilateral decisions. This is why EU is seeking the Blocking Statute which forbids EU persons from complying with US extraterritorial sanctions.
However, from the Iranian perspective, as US secondary sanctions will come back into force in August and November 2018, EU’s solution was inadequate and the progress has been slow. Iranian frustration over the lack of tangible political and commercial developments with Europe is understandable. According to the official statistics, before the US withdrawal from the JCPOA, European business engagement with Iran was widely slower than expected[5]. The point that should be taken very seriously is to make sure that Iran’s frustration with the bad record of the implementation of the JCPOA by EU (especially in the Banking sector and Insurance), does not reach to a level that the Iranian decision makers and Iranian public would say enough is enough.
It seems that EU’s hesitation in improving its relations with Iran is due to some controversial issues between Iran and EU, which can be addressed through a realistic and constructive approach. These issues can be listed as follows:
1- Iran Ballistic Missile Program
It seems that one the most controversial issues between Iran and EU is Iran missile program. EU has imposed different restrictive measures against Iran ballistic missiles and related technology. After the JCPOA, these restrictive measures has continued.
From international law point of view, Ballistic Missile Program itself cannot be considered as the main source of EU concern; the main cause of these kinds of concerns was Possible Military Dimension (PMD) on Iran nuclear program. The reports of the International Atomic Energy Agency (IAEA), including GOV/2015/68 clearly indicate that there is no reasonable ground to believe that there are activities in Iran which are related to the WMD. In this document, the IAEA “has found no credible indications of the diversion of nuclear material in connection with the possible military dimensions to Iran’s nuclear programme[6]”. Almost all concerns, relating to this issues, have been alleviated.
In other words, Iran’s full compliance with the JCPOA means that Iran has not been engaged in any activity relating to those missiles which are designed to be capable of delivering nuclear weapons. In fact, the PMD concerns do not exist anymore, and the main concerns “regarding Iran’s development of sensitive technologies in support of its nuclear and missile programs”, which was mentioned in UNSC Resolution 1929, are clarified. Thus, activities of Iran in ballistic missile area cannot constitute a legal ground for imposing restrictive measures against Iran.
With respect to Iran ballistic missile program, EU, and United Stated try to interpret UNSC Resolution 2231 in a way that they could prove a violation of resolution by Iran. Iran launched a space launch vehicle (named Simorgh) on 27 July 2017, next week and on 2 August 2017, France, Germany, the United Kingdom of Great Britain and Northern Ireland and the United States within a letter to the UN Secretary-General[7].
Those States underscored that the phrase “ballistic missile designed to be capable of delivering nuclear weapons” in paragraph 3 of the Annex B to resolution 2231 (2015) included all Missile Technology Control Regime (MTCR) Category I systems — defined as those capable of delivering at least a 500 kg payload to a range of at least 300 km — that are inherently capable of delivering nuclear weapons and other weapons of mass destruction. They noted that space launch vehicles (SLV) such as the Simorgh were “inherently capable of delivering a 500 kg payload to a range of at least 300 km if configured as a ballistic missile” and “inherently capable of delivering nuclear weapons”[8].
It is worth noting that the issue of how properly interpret the UN Security Council resolutions is an important and critical subject of international law today. Michael Wood, a member of the International Law Commission, has made it clear that Articles 31 and 32 of Vienna Convention on the Law of Treaties (VCLT) cannot simply be applied to the interpretation of UNSC resolutions. According to him, the resolutions are not treaties, they are “unilateral pronouncements of an organ of an international organization”. As a result, the UNSC resolution should be interpreted “as per the terms of the resolution”. The UNSC uses a number of words for expressing its intention. The leading words – typically verbs occurring at the beginning of each operative paragraph of the resolutions – are critical instruments for interpretation of the resolutions.
The weakest leading word that actually instructs an addressee to perform an action is “calls upon” which is used in UNSC resolution 2231. Most of the interpreters and scholars have specified the “calls upon” language as legally non-binding.
Paragraph 3 of Annex B in JCPOA stipulates that: “Iran is called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons”. The language change from “decides that Iran shall not” in resolution 1929 to “Iran is called upon” in resolution 2231, indicates a softening in tone, and it stems from the non-legally-binding language used in resolution 2231. The obligations concerning Iran’s missile tests that were moved from operative paragraphs of resolution 1929 to the annex B of JCPOA endorsed by resolution 2231, is on the right track. The missile concerns are not mentioned in the operative paragraphs of resolution 2231.
Accordingly, if the Council intended to create new legally binding obligation in the resolution concerning Iran’s missile tests, it would use the term “Demands” rather than “Calls upon”. The Council has intentionally changed its language toward Iran’s missile program, and the issue is thus de-securitized in the view of the UN Security Council[9].
After clarification of PMD case and alleviation of all concerns around Iran nuclear program by full implementation of JCPOA and verification of IAEA through its reports, EU should avoid punishing Iran for its ballistic missile program which is not a threat toward international peace and security. Iranian officials have repeatedly promised that “Iran’s missile program is totally for peaceful purposes and is solely for protecting the country’s sovereignty and territorial integrity as well as combating terrorism and extremism”.
If EU wants to continue its constructive role in preserving JCPOA and settlement of regional disputes in MENA region, it is better to change its perception toward Iran missile program and consider it as a normal defense strategy of Iran in a turbulent region such as Middle East and come to the conclusion that Iran, like any other states, legally have right to have its own military capabilities. If EU wants to solve the regional crisis, such as Syria, it should engage more with Iran, rather than imposing restrictive measures against it for developing its own military capabilities.
2- Human Rights
Human rights have long been a point of friction between Iran and EU; human right is one of the main reasons for EU sanctions against Iran. With regard to the issue of human rights, there are two main issues of distrust from the Iranian perspective:
– Iran believes that The Universal Declaration of Human Rights is based on a different source of thoughts which is, to some extent, in contradiction to Islamic beliefs[10]. Although Islam cares about human rights and consider it as a fundamental right of human beings, there are some differences and according to Iran, EU doesn’t recognize these differences.
– Iran also condemns the EU’s double standards and political approaches toward human rights[11]. Iranians believe that EU’s extension of sanctions against Iran under the pretext of human rights violations was an ineffective policy and won’t help the two sides to become closer to each other.
According to the official statistics, around 80% of executions in Iran are drug-related. With regard to this fact, Iran has decided to amend some of its legal procedures in order to reduce the number of death penalty. The Iranian parliament has passed an amendment to the law against drug trafficking, which would change the application of death penalty and save the lives of around 4,000 people currently on death row for minor drug-related crimes. The head of the Iranian judiciary has issued an order to the judges to rescind death sentences that do not satisfy the requirements of the amended law[12].
Iran-EU Human Rights Dialogue could be a suitable way of resolving this misunderstanding which is a source of other problems. Instead of extending sanctions on Iran over human rights, EU should engage more and cooperate with Iran on the issue of human rights. If they resolve the above-mentioned misunderstandings, they will come to an appropriate conclusion over this controversial issue which is going to be a source of problem in Iran-EU relations.
Iran wants to take significant steps regarding human rights and intends to amend and update some judicial laws based on Islamic thoughts; in comparison to the past decade, the human rights situation in Iran has improved. If EU engages with Iran in a constructive dialogue and recognize the special situation of Iran as a Muslim nation, it will take effective results and this is the best way to promote human rights in Iran. EU should come to the conclusion that imposing more sanctions and extending previous ones on Iran, won’t improve the situation of human rights in Iran.
3- Iran Regional Policy
Middle East:
Relations between Iran and the European Union include a combination of challenges and opportunities during past decades. From EU perspective, one of the challenges in this regard is Iran’s policy toward the Middle East and its engagements in Iraq and Syria. Iranian officials have repeatedly stated Iran’s presence in Syria is “limited, calculated” and at the request of Damascus as well as a mutual agreement by both sides[13]. Regardless of the fact that Iran’s presence is legal or not, if EU considers Iran regional policy as a threat against regional stability and EU interests, imposing a sanction on Iran cannot be a solution to this problem.
The EU has not responded positively to calls from Iranian government about regional cooperation and didn’t look seriously to Iran’s proposal about reshaping of security arrangements in the region; Javad Zarif made a proposal on the regional security in the Persian Gulf and the Middle East:
“Iran believes that our Persian Gulf region requires a fresh regional security architecture. We believe in, and have proposed, creating what we call a “strong region” as opposed to a “strong man in the region” … In a quest to create our “strong region”, we need to be realistic and accept our differences. We need to move from collective security and alliance formations to inclusive concepts such as security networking which can address issues that range from divergence of interests to power and size disparities … We also recognize that we need confidence-building measures in the Persian Gulf: from joint military visits to pre-notification of military exercises; and from transparency measures in armament procurements to reducing military expenditures; all of which could eventually lead to a regional non-aggression pact. We can begin with easier to implement issues such as the promotion of tourism, joint investments, or even joint task forces on issues ranging from nuclear safety to pollution to disaster management”[14].
In order to promote peaceful settlement of disputes in the Middle East, EU can Foster regional understanding which is something that the EU is good at, and tries to reflect its own historical experience. Instead of focusing narrowly on Iran’s policies, EU should nudge the Saudis and their allies toward some sort of accommodation with Iran. If the Saudis could be brought into negotiations with Iran it would do far more for Middle Eastern stability than piling more sanctions on Tehran ever could[15].
South Caucasus:
One of the most important areas of bilateral relations between Iran and the European Union is Iran’s geopolitical position and its positive and constructive relations with South Caucasus. With respect to the Caucus region, EU decides to engage more in the South Caucasus but is concerned about terrorism, organized crimes, and regional conflicts. Iran is the only actor in the region which has positive relations with all of the South Caucasus countries including Armenia, Azerbaijan, and Georgia. Neither Turkey nor Russia has such positive relations with the mentioned countries. Both Russia and Turkey have some level of tension with respect to their relations with South Caucasus countries.
Iran is an important and influential actor in South Caucasus and can play a very instructive role in partnership with EU to address current threats of this region, such as terrorism and regional conflicts. Iran-EU cooperation in this region can be effective and helpful due to the fact that: Armenians have always welcomed the positive role of Iran in regional developments, Baku won’t reject the involvement of Iran in regional security arrangements, and Georgia will welcome Iran’s involvement in regional arrangements if it assists to solve security problems of Tbilisi[16]. Joint cooperation of the Islamic Republic of Iran and the European Union in South Caucasus can provide this region with stability. It also can promote and increase Iran- South Caucasus trade and economic ties.
Conclusion
From a European perspective, the JCPOA was reached as a result of EU political initiatives and engagement in more than 12 years of negotiations. European believes that JCPOA constitutes a pillar for the NPT regime, and this is why protecting it is vital for them to preserve it. Preserving JCPOA and protecting Iran-EU relations is defined as EU ability to stand up for its own interests and values and is about the re-assertion of Europe’s sovereignty. But they will not reach to what they intend unless they take a constructive approach.
Since the Implementation Day of JCPOA, EU has been hesitant to develop its relations with Iran and adopt the policy of “Appeasement” towards Iran. It seems that European policymakers are trying to keep the JCPOA alive and at the same time they are exerting high pressure on Iran to halt its missile program and change its policy toward the Middle East. These types of policies will negatively affect Iran’s relations with EU and won’t help to address unsolved issues between Iran and EU.
EU’s deeds make EU’s words credible and every action or inaction by EU will shape EU’s credibility. The only way to secure one’s reputation is to create trust and credibility. This is the moment for EU to create this trust and credibility with respect to its relations with Iran. Faithful implementation of the JCPOA and recognition of Iran as a legitimate actor in the Middle East will generate a level of trust between Iran and EU which will enable constructive discussions on different issues.
The best way to create trust and credibility between EU and Iran, is to de-securitize bilateral issues (such as: human rights, Iran’s regional policy, and Iran’s missile program) and try to come to a common understanding through a constructive approach and then launch partnership in different areas such as: cooperating in regional issues, fighting against air pollution, protecting water resources, advancing agriculture and the food industry, as well as enhancing and improve urban management, medicine and public health.
Mahdi Khalili
M.A. in Diplomacy and International Law
